Table of Contents

Answering Questions Well:..........................................................................................................3

Battery......................................................................................................................................... 4
Assault......................................................................................................................................... 5
Transferred Intent........................................................................................................................ 6
Affirmative Defenses to Battery and Assault................................................................................7
Consent.................................................................................................................................... 7
Self-Defense (Haeussler v. DeLoretto).....................................................................................7
Defense of Property.................................................................................................................8
Recapture of property........................................................................................................... 8
Intentional Infliction of Emotional Distress (IIED).........................................................................9
Negligence

.................................................................................................................................................. 10
Duty........................................................................................................................................ 10
General Duty of Reasonable Care......................................................................................10
Exceptions to General Duty of Reasonable Care................................................................11
Breach.................................................................................................................................... 13
Various standards of care:..................................................................................................13
Exception - Children:.......................................................................................................... 13
Foreseeability & Practicality Considerations Mention these!!..............................................14
Custom............................................................................................................................... 14
Cost-Benefit Analysis (Rhode Island Trust Bank v. Zapata)............................................14
Res Ipsa Loquitur............................................................................................................... 14
Negligence Per Se.............................................................................................................. 15
Causation............................................................................................................................... 16
Actual Cause...................................................................................................................... 16
Proximate Cause................................................................................................................ 17
Public Policy Factors.......................................................................................................... 18
Injury...................................................................................................................................... 18
Medical Malpractice............................................................................................................... 19
Palsgraf Majority.................................................................................................................... 19
 Palsgraf Minority (Alvarado v. Sersch)...................................................................................19
Defenses to Negligence (Talk About ALL 3)...........................................................................20
Contributory Negligence.....................................................................................................20
Comparative Fault.............................................................................................................. 20
Assumption of risk.............................................................................................................. 20
Damages................................................................................................................................... 22
Vicarious Liability....................................................................................................................... 23
Joint Liability & Apportionment...................................................................................................23
Negligent Infliction of Emotional Distress...................................................................................24
1. Fright/ Personal Hazard/ “Zone of Danger”........................................................................24
2. Bystander NIED................................................................................................................. 24
3. Special Relationship........................................................................................................... 25
Trespass.................................................................................................................................... 26
Nuisance.................................................................................................................................... 26
Ultrahazardous Activities........................................................................................................... 28
Products Liability........................................................................................................................ 29
Manufacturing defect: (Escola v. Coca Cola).........................................................................29
Design Defect: (Greenman v. Yuba Power Products-- shopsmith).........................................29
Failure to Warn or Instruct:.................................................................................................30
General Products Liability Notes:...........................................................................................31
Indemnification & Liability Insurance..........................................................................................32
Torts Overview: Thinking guide.................................................................................................33
Answering Questions Well:

I - Issue
R - Rule
A - Application
C - Conclusion

Application:
Element + because + element definition + relevant facts

On to the next element….

E.g.
The issue is who acquired title to the lobster under the rule of capture.

To acquire title under rule of capture, you must [element 1, element 2, . . . ]

Element 1 + b/c + element def’n + relevant facts

Element 2
…

Conclusion
Battery
Infliction of a harmful or offensive contact by an actor upon another with the intent to
cause such contact.

Prima Facie Case:

(1) A acts,
(2) Intending to cause a contact with P;
-Single intent: only intends a contact (Wagner v. State)
-Double intent (WI): must intend both the contact & that contact be H/O
- Don’t need to intend exact harmful or offensive contact, just that it be
harmful/ offensive (Vosburg v. Putney)
(3) The contact with P that A intends is of a harmful or offensive type; and
-break down of determining what is H/O below
-Contact doesn’t have to be person-to-person, but must be physical
(4) A’s contact causes P to suffer a contact that is harmful or offensive

Notes:
What is “harmful” or “offensive”? (Holbrook - creepy touchy guy)
 Whether a R-person, not unduly sensitive to touch, would find the contact to be
harmful or offensive
○ Examine and talk about: social standards, context, who was touching, when,
where, repeated events, P. telling D to stop, other circumstances, etc.
 If the contact was illegal, it is automatically H/O

How to determine intent?

 Actor acted with the purpose of causing the contact
 Can be if the actor acted while knowing that the result was likely to occur.

Contact does not have to be direct person-to-person.

Be Sure to Address:
 If talking about Battery, also probably mention assault
 Talking about both single and double intent forms of battery.
 Eggshell skull rule - D is liable for all results of actions, not only the intended
Vosburg v. Putney
 Possibly transferred intent
Assault
Prima Facie Case:
(1) A acts,
(2) Intending to cause in P the apprehension of an imminent, harmful or offensive
contact with P; and
-How to determine H/O same as in Battery
-Single intent: only intends apprehension of a contact (Wagner v. State)
-Double intent (WI): must intend both the apprehension of a contact & that the
apprehension be of a contact that is H/O
- Don’t need to intend exact harmful or offensive contact, just that it be
harmful/ offensive (Vosburg v. Putney)
(3) A’s act causes P reasonably to apprehend such a contact.

Notes:
For determining intent, harmfulness, or offensiveness see battery.

How to determine what is Imminent?

 Is there a present ability to act?
 If is not imminent, it may be IIED!!

How to determine a “reasonable apprehension”? [Taken from Vetter v. Morgan]

 vicinity/ proximity
 Statements are extreme
 Ability
○ Lack of witnesses/ rescuers
○ Age, size, gender differences
○ Time and place of assault.

Be sure to distinguish threats from assaults! [From Brooker v. Silverthrone - phone oprtr.]
 Threats look to the future
○ Don’t satisfy the “imminent” element
○ Words alone not normally assault
○ Threats can be IIED

Be Sure to Address:
 Ordinarily, words alone are not assault, but words with acts or circumstances can
make it assault.
 Imminent
  Reasonable
 The key differences (vicinity, extremity, ability) in Brooker and Vetter, to see when
assault has occurred.

BE CAREFUL distinguishing Assault from NIED fright cases!! The big difference is intent
v. negligence!!

Transferred Intent
In re White
One who intends a battery or assault or whatever is liable...you just have to have the intent
to begin with
 “every person is liable for the direct, natural, and probable consequences of his acts,
and that everyone doing an unlawful act is responsible for all the consequential
result of the act”

Applications:
 Intend victim to suffer one thing (e.g. assault), but causes another (e.g. battery)
 Across victims
 Across torts and victims
 From things to persons (e.g. person’s dog to person)
Affirmative Defenses to Battery and Assault
 Many states require the plaintiff to prove absence of consent rather than leaving it to the
defendant to prove that the victim had consented

 Comparative fault defense is not available to assault and battery

Consent
 Express - written or spoken
 Implied - must look at circumstances!!! -- age, gender, relationship of parties, etc.
Koffman v. Garnett
○ Inferences from things other than P’s behavior not relevant

 D cannot argue that the touching was in the plaintiff’s best interest/ say that P
“would have” or “should have” consented when they did not.

○ Unless actual and reasonable belief P. was in imminent physical harm

 Limitations:
○ Scope of consent
○ Consent must be knowing and willfully given (i.e coercion, fraud...)
 Consent can be a no go if D has a reason to know the consent wasn’t
willfully given (i.e. D. was in power position)
○ P. must have the capacity to give consent. If P. is going to say that they don’t
have the capacity to give consent, so the consent doesn’t work, then a
reasonable person must have been able to recognize the lack of capacity.

Self-Defense (Haeussler v. DeLoretto)

 Elements:
1. A has a reasonable and actual belief of imminent physical bodily harm
2. A has a reasonable and actual belief that the force used is necessary to
prevent imminent bodily harm

 If A provoked/initiated the confrontation, then A cannot claim self-defense

 There must be proportionality between the force used and what they feared
  Be sure to consider:
○ Provocation – doesn’t apply to taunting / teasing
○ Objectivity of threat
○ Proportionality & deadly force
○ Conditional threats
○ Dwellings & retreat

Defense of Property
 Definition: only an affirmative defense to battery when the bodily security of the
tenant is threatened
 No deadly force for defense of property Katko v. Briney
 Deadly force is only justified when the injurer actually and reasonably perceives the
victim is threatening him with imminent death or serious bodily injury

Recapture of property
 As a rule, the privilege to use reasonable force to defend property only applies
preventively. However, if the property has, in the owner’s absence, momentarily been
occupied by an intruder who has no right to be there, the owner may use reasonable
force to remove him
 A possessor may use reasonable force against another if the other has obtained
only momentary possession of the chattel - limited privilege
Intentional Infliction of Emotional Distress (IIED)

IIED Elements:

(1) A performs an act of outrageous/ offensive conduct

- There is no definite rule of what is outrageous conduct, but case law gives:
“Behavior that is extreme in nature & is outside the bounds of what normal
society considers acceptable.”
(2) A intended to cause emotional distress or recklessly causes severe ED
- Had the purpose of causing severe ED
OR
- Reckless: A knew or should have known that their conduct was likely to
cause [severe emotional distress] and still did it
(3) Conduct actually causes severe emotional distress

 A threat of future harm can give rise to IIED claim

Dickens v. Puryear - “Hillbilly Justice,” dad and his friends chain, beat, threaten guy
who was involved with his daughter.

 Littlefield v. McGuffey - Racist landlord

○ This case shows us why IIED developed
 None of the stuff he did was battery (no contact), or assault (no
apprehension of imminent harmful/offensive conduct)

Be sure to say that:

 There is no clear rule defining what is outrageous conduct, however case law gives
us: “Behavior that is extreme in nature & is outside the bounds of what normal
society considers acceptable.”
[Dickens v. Puryear; Littlefield v. McGuffey; and Hunt v. State]
 If tortfeasor’s intent is not directly given in problem, it can reasonably be inferred
from the facts
Negligence

 Must be a physical injury!!!!!!

 Medical Negligence = “Medical Malpractice”

Prima Facie:
1. P has suffered an injury;
2. D owed a duty to a class of persons including P to take care not to cause injury of the
kind suffered by P;
3. D breached that duty of care;
4. D’s breach was an actual and proximate cause of P’s injury.

Duty

General Duty of Reasonable Care

 Duty to take reasonable care not to harm others for everyone
(Heaven v. Pender)
 Foreseeability and circumstances determine what is required for this:
○ E.g. Thomas v. Winchester, medicine maker has to be very careful about
labeling products because foreseeable that could cause big problems.
 Duty Owed is ? of law for judge

 General Duty of Reasonable Care developed over time:

○ Winterbottom v. Wright, (third party sues carriage maker when a wheel
breaks causing injury) established that there was never a duty without a
contract-- this was called the Privity Rule
○ Thomas v. Winchester, (Thomas sues third party medicine maker because
poisoned was labeled as medicine). This one did not follow Privity Rule
because it was foreseeable that if medicine maker was not very careful, there
could be trouble.
○ MacPherson v. Buick, same facts as Winterbottom v. Wright, but this time the
courts imposed liability, saying how duty has developed over time.
 This eliminates the Privity Rule
Exceptions to General Duty of Reasonable Care
Duty extends beyond the General Duty of Reasonable Care in these Exceptions:
[A.k.a. when tort law cares about Nonfeasance (not doing something you should have)].
1. Affirmative Duties (Arises from special relationships & Public Policy)
 Duty to take affirmative action to help someone (not just “not injure them” as
required by General Duty)
○ Normally no duty to help others (Osterlind v. Hill)
○ Affirmative Duties arise due to Special Relationships & Public Policy &
if you cause the dangerous situations to arise
 Economic benefit relationship / don’t want to step over ppl.
“choking on their blood at T-Bell” (Taco Bell Case - Baker v.
Fenneman & Brown)
 Protecting relationship / want people to be safe (Tarasoff v.
Regents of U of C)

2. Premises Liability
Old System:
- Use these categories to determine what level of care is owed
Invitee (someone who is there for the Exercise reasonable care
benefit of both parties, business mtg.)

Licensee (has permission of land owner, Warn of known, hidden dangers

social guest)

Trespasser (someone who doesn’t have Don’t willfully or wantonly injure

permission to be there) them

*Flagrant trespasser has lower duty (can

only willfully injure if in danger of harm)

 EXAM TIP: Be on the look-out for:

○ Ppl. changing categories Leffler v. Sharp, guy who climbs out window
○ Heightened duty if you have an attractive nuisance or know that
people are coming onto your land

Modern Approach:
 Duty of reasonable care to all
 Duty of reasonable care for trespassers is don’t willfully or wantonly injure
 (Rowland v. Christian)
 ○ Overturned the old system bc it was outdated, based in Feudalism and
too Downton Abbey-ish and now there is a new respect for all life.

[ This is where the Rowland Factors were formed, they’re used on high level to
determine if a duty should be imposed.
1. Foreseeability of harm to plaintiff
2. Degree of certainty that P suffered injury
3. Closeness of connection between D’s conduct and the injury suffered
4. Moral blameworthiness of defendant’s conduct
5. Policy of preventing future harm
6. Extent of the burden that would be imposed on D and consequences of
this burden to community
7. Availability, cost, and prevalence of insurance for the risk involved ]

3. Pure Economic Loss

 Affirmative duty to not cause another to incur economic loss
○ Be careful, these are situations where there is no injury to P aside from
economic
○ BC of public policy there is normally no duty to prevent economic loss of
another (floodgates)
○ (Aikens v. Debow) - EconoLodge
○ There is a duty to prevent pure economic loss for special relationships
 I.e. attorney - client
 Accountant - client
 Engineers, architects, etc.

4. NIED (is another exception to general duty of R-care)

 Traditionally there is no duty to protect someone’s emotional well-being (Wyman v.
Leavitt, rocks falling in backyard)
o but courts make exceptions by imposing duty to look out for emotional well-
being in cases of: personal hazard, bystander, special relationships
Breach
 A ? of fact for the jury

Various standards of care:

o Ordinary -- what a R-person would do (Myers v. Heritage – hoyer lift)
 The A R-person is an objective test in two ways:
1. What a R-person would do in situation
- Not what a R-(Menlove) would’ve done
- HOWEVER, superior abilities are considered (pro-skier who didn’t
evade collision)
2. Conduct the D. did
- Not their state of mind
(Vaughn v. Menlove)

Exception - Children:
 The “R-Child” in WI is Tender Years Doctrine
 1-7 no negligence
 8-18 R-child of that age - unless doing an adult activity
 Massachusetts Rule: 1-18 as R-child of that age

o Professional -- what a R-member of that profession would do

 Normaly need expert testimony to get explain professional standard
 I.e. Medical Malpractice case
o Extraordinary Care - Common Carriers, duty of extraordinary care in carrying out
their business as advertised
 Anything short of the highest standard of care for passenger’s safety is
a breach (Jones v. Port Authority)
o Strict Liability (Pingaro v. Rossi -- dog bite case)

So, now you’re addressing whether or not there was a breach…

 If you can, begin by saying what standard of care is owed in the situation (choose
from above)
 In continuing your analysis, you should use as many of these tools as possible to see
what was owed by the D to the P:
Foreseeability & Practicality Considerations Mention these!!
○ Assess if an injury is foreseeable -- if so, more likely that D. breached their
duty/ standard of care by not preventing
“It was foreseeable that...bc...and D should’ve done…”
○ Assess how practical it would be for D. to have protected against the type of
injury -- if not very practical, less likely that D breached their duty/ standard
of care
(Adams v. Bullock -- kid swinging 8ft wire on bridge above trolly car line and
gets electrocuted).

Custom
Industry Custom helps determine if there was a breach, but it is NOT definitive.
The T.J. Hooper, barge that didn’t have radios

Cost-Benefit Analysis (Rhode Island Trust Bank v. Zapata)

 This is a tool for determining if there was a breach of duty based on economics.
 Hand Formula: B> PxL then there should not be a duty here/ no breach
B<PxL then there should be duty here/there was breach
B: Burden,
P: Probability of a given foreseeable injury happening,
L: seriousness of resulting injury.

 This can be used in situations where there is clearly numeric values to fill into Hand
Formula (Check cashing case) or in cases that don’t have clear numeric values
(barge crash case-- which would require placing a numeric value on the bargee
never being able to leave the barge)

Res Ipsa Loquitur

 When there is no evidence to show breach, think, “Hey maybe Res Ipsa would
work!”
 Allows P. to prove breach without any affirmative evidence when the circumstances
make the event very unlikely to have occurred without a breach.
○ “Well, something went wrong.”
  To get an instruction on Res Ipsa, must meet the following:
1. Event is the kind that normally doesn’t happen w/o breach
2. Must be caused by something w/in the exclusive control of D.
3. Must not be any voluntary action or contribution from the P.

 Res Ipsa Loquitur brings the P’s case from an F to something higher than that (but
not necessarily an A+)
○ Falling flour barrel Byrne v. Boadle
○ Lady had the 18” sponge left in her after surgery – Kambat v. St. Francis Hosp.

Negligence Per Se
 Violation of a statutory standard of care automatically satisfies the breach element
○ This is an automatic A+ on breach element
○ Even if negligence per se is not found, the violation still can be used as
evidence for showing there was a breach.

 Negligence Per Se Elements:

1. Defendant violates a statute or regulation without excuse
2. Statute is designed to protect against the type of accident caused
(I.e. A violation of law against leaving gas spilled at a gas station won’t work
for someone who slips in the gas, b/c that rule is made for fire safety)
 Van goes off of the road and hits the pedestrian who was looking in the
trunk of a car parked on the sidewalk in violation of an ordinance.
Victor v. Hedges
3. Violation of the statute or regulation caused Plaintiff’s injury
4. P is within the class of persons that statute is designed to protect
(i.e. law against parking on the sidewalk won’t work for someone hit by a car
while on the sidewalk looking at the car, b/c that law is made to protect
people walking on the street due to cars being on the sidewalk)
 Guy falls off of loading platform b/c didn’t have a guardrail as they
should’ve Bayne v. Todd Shipyards Corp

 Excused violations:
○ Youth/ physical incapacity of defendant
○ Reasonable efforts by defendant to comply
○ Justified ignorance of defendant as to existence of facts rendering the statute
applicable
 ○ Excessive vagueness/ ambiguity in statute
○ Compliance possess greater danger than non-compliance

Causation

Actual Cause
“But-For Test”
 It needs to be more likely than not that “but-for” D’s actions, the P wouldn’t have
been injured.

Substantial Factor Test – only talk about this on exam if you’re in WI

 After passing the “But-For” test, you then determine if it was also a “substantial
factor” in bringing about the harm
○ Just needs to be significant/ recognizable

 Carelessness is a substantial factor in bringing about an injury only if it constitutes:

(a.) A non-trivial necessary condition for the occurrence of the plaintiff’s injury; OR
(b.) One of two or more simultaneously operating forces that is each sufficient to
bring about harm to another

Special Problems for Determining Actual Cause:

When D.’s would fail the But-For test, but courts have these exceptions

Loss of Chance (exception to usual But-For) Falcon v. Memorial

 Use this when you can’t show that the D. caused the injury, but you can show that
the P. “lost a chance” of survival / avoiding pain because of the D.
○ The chance lost can be less than 50%, but must be substantial (37% was sub.
In Falcon v. Memorial)
○ Damages awarded will match the % chance that was lost due to negligence.

Multiple necessary causes. McDonald v. Robinson

 Can sue together or severally
 Two cars collide like vectors and so hit someone

Multiple sufficient causes Ford v. Boomer

  both would fail the but-for test, so they carve out rule that when multiple sufficient
causes all can be held liable

Alternative Causation Summers v. Tice

 When limited # of possible tortfeasors, but only 1 is actual tortfeasor
 Alternative causation shifts burden onto Ds to prove that they were not the cause of
injury. Otherwise Ds are jointly and severally liable.
○ Motivation for doing this:
 P was definitely innocent
 Ds have the info that P doesn’t, so trying to get D to talk
(3 guys who go hunting in a triangle form Summers v. Tice)

“Market Share Liability” Sindell v. Abbott Labs

 Products liability method of imposing liability on large groups of Ds when there is
no way of knowing which D is responsible for an injury caused by the same product.
○ Here’s how it works:
1. P sues a substantial portion of market
2. Ds can get out if they can prove innocent
3. Remaining Ds are liable based on share of market they had

Proximate Cause

Prox. Cause: Palsgraf Majority:

Foreseeability/ Scope-of-the-Risk Test
 You’re actions are the proximate cause of an injury if the injury is the type that
would foreseeably result from the actor’s conduct. Wagonmound
○ Foreseeability of exact development is not needed, just the type of injury,
BUT it should still be foreseeable (leaving keys in car by prison leading to
NIED case was not the prox. Cause)
Jolly v. Sutton
○ The extent of the injury does not have to be foreseeable, only the nature of
the injury.
Vosburg v. Putney

 I.e. I’m playing with fireworks, and someone is injured by the falling ash. It is
foreseeable that this kind of injury would result.
Superseding Cause, (This can be an issue with Prox. Cause)
When 2 wrong doers act one after the other the second wrongdoer may be called a
“superseding cause” and block the first wrongdoer from liability.
2 Elements:
1. Wrongdoers act independently
2. Initial wrong is remote from injury & the subsequent wrong is relatively the
direct cause
 Superseding cause does not exist in WI
 Med. malpractice is never a superseding cause
 Also consider contributory neg.
 Look to see if the supposed superseding cause made it more dangerous
Pollard v. Oklahoma City Railway – made blasting caps more dangerous

Proximate Cause, Minority: Under Andrew’s Dissent

 WI and other followers of the Andrew’s Dissent use Proximate Cause to limit
liability based on public policy factors.

Public Policy Factors

 If you can, you should address each factor.
1. Remoteness of injury from breach
2. Proportionality between injury and D’s negligence
3. Extraordinary that harm results from the breach?
4. Does allowing recovery place too much of a burden on D?
5. Would allowing recovery open door to fraudulent claims?
6. Flood gates

 If in WI jurisdiction, which you probably will be bc these are the WI public policy
factors, you can compare to how they were applied in Alvarado
1.injury and breach were relatively distant on causal chain
2.Failing to check cabinets led to debilitating injury
3. yeah it was fairly extraordinary
 IN WI
o Must observe an extraordinary event and causes P's injuries
o Serious injury of the witnessed victim
o Relationship to victim, closely related

Injury
Categories of Injuries:
  Physical Harm
○ Bodily
○ Damage to Property/Possessions
 Loss of Wealth
 Emotional Distress (sometimes)

Medical Malpractice
Duty
 Professional Duty of Care
 Special duty arises from relationship
 Medical Disclosure: (Largey v. Rotham)
o WI follows the Prudent Physician Standard for what patients should be
told
o As opposed to Prudent Patient Standard - what a prudent patient would
want to know

o Doctrine of Informed Consent: Doctor must have informed consent, so the

duty of the doctor is to tell patient what they need to know to make an
evaluation of the nature of treatment and any substantial risk
 The 2 standards say what this info. is
Breach
 breach is examined by asking whether the defendant exercised the degree of care
that a reasonable doctor would under similar circumstances
 the plaintiff in a malpractice action does not always need to introduce expert
testimony to establish that the defendant failed to meet this standard of care
o Kambat v. St. Francis Hosp. - case with sponge left in person

Palsgraf Majority
1. Is P. a member of the class of people who D. owed a duty of care to
2. Did D breach their duty
3. Actual Cause - But-For
Proximate Cause - Foreseeability
4. Injury
Then public policy if applicable
Palsgraf Minority (Alvarado v. Sersch)
Duty - duty to all (As opposed to Cardozo which uses duty to limit floodgates)
Breach - regular
Causation
Actual Cause - Substantial Factor Test only in WI
Proximate Cause - public policy done by court
Injury -standard

Defenses to Negligence (Talk About ALL 3)

Contributory Negligence
 Old rule (except in a few states) where if P. is at all at fault they cannot win

Comparative Fault
Pure Comparative Fault
 D’s percentage of fault is how much P can recover (no cut-off)
Modified Comparative Fault
 P cannot be more than (X)% at fault to recover
○ In WI this is 50%

Assumption of risk
Express
 D. waives liability orally or in writing
 To consider if a Waiver is valid, consider:
a. Freely and Fairly Made
b. Equal Bargaining Position
c. Social Interests
Tunkl Factors evaluate the “social interest” factor
i. whether the business is of a type generally thought suitable for public
regulation,
ii. whether it performs a service of great importance to the public which is
often a matter of necessity for some members of the public,
iii. whether the defendant holds itself out as willing to perform the service
for any member of the public who seeks it,
 iv. whether the defendant has a decisive advantage in bargaining strength
against members of the public who seek its services,
v. whether the contract is an adhesion contract with no opportunity to
negotiate, and
vi. whether plaintiff is placed under the control of the seller.

 Say which of the following cases it is more like:

A. Jones v. Dressel (18y.o. Who was injured when skydiving)
The exculpatory K was upheld b/c:
1. Able to negotiate
2. Doesn’t really affect social interests
B. Dalury v SKI, Ltd. (P. hits a poll when skiing)
The exculpatory K was NOT upheld
1. No ability to negotiate
2. Given the popularity of skiing it does affect social interest

--------even if you’re saying court will not enforce an express assumption of risk, D. can still
argue Implied Assumption of Risk, so you should address it -----------------

Implied Assumption of Risk (Not a thing in WI)

 Two requirements:
1. Did P. know of the risk?
2. Did the P. voluntarily choose to encounter the risk?

Smollett v. Skayting Co. (Lady gets injured at skating rink that doesn’t have rails)
 P. did assume the risk
○ She had asked abt. why there weren’t rails and had been on the carpet
with her skates so she knew they wouldn’t roll bc of friction -- so she
knew and voluntarily chose to encounter.
Damages
Compensatory Damages
 Includes both:
○ Non-economic
 Pain & suffering, activities can no longer do
○ Economic
 Lost wages, med. Bills, cost of future treatments
 Awarded by juries.
○ Juries Consider:
1. Nature/ extent of injuries
2. Diminished earning capacity (future lost wages)
3. Economic damages
4. Plaintiff’s age

 Do not have to be reasonable, just can’t “shock the conscience of the court”

 Remittitur - court says lowers damages and tells P. they can accept $(X) as damages
or we will have new trial
 Collateral Source Rule - it doesn’t matter if an insurer will be paying for all or some
of the expenses, the P. still gets to collect from D.

Punitive Damages Mathias Case -- bed bugs

 Only awarded when: the evidence indicates that the defendant acted wantonly in
causing the injury or with such conscious indifference to the consequences that
malice may be inferred.
○ Wantonness = D. knew the natural and probable consequence of his action
would be injury, but proceeds anyway
○ Deterrence and punishment
○ Offensiveness, can mean higher damages
○ High damages cover times D. wasn’t caught
○ Proportional to wrongs
 ○ Bed Bug case emphasized if D. knew about something and chose not to
address it & if D profited from not doing something

Vicarious Liability
When someone is responsible for the acts of another
 Commonly Respondeat Superior

Under Taber v. Maine,

 employers are liable for the negligence of their employees if they are “typical of or
broadly incidental to [the employer’s] enterprise.”
 respondeat superior can apply even to torts that are committed off site and during
employees’ leisure time.
o In particular, Taber endorsed the idea of respondeat superior applying to
torts that stem from employees’ recreational pursuits whenever those
pursuits are “conceivably of some benefit to the employer or . . . have become
a customary incident of the employment relationship.”

Joint Liability & Apportionment

 Apportionment is how courts divide damages between joint tortfeasors
 2 tortfeasors must have a joint effort to be JS liable.

 Joint & Several liability applies when 2 tortfeasors act concurrently to produce a
single injury

○ If 2 tortfeasors don’t act concurrently but cause an injury that cannot be

divided reasonably based on independent breaches, they’re held joint and
severally liable. (Ravo v. Rogatnick – 2 doctors who cause brain damage)
  In some jurisdictions the defendants named are liable for the entirety of (non-P
caused) damages. That is, unnamed/unaffected parties are not considered for
contributory negligence.
○ Not so in WI!! In WI a defendant is only liable for the portion of damages they
caused.
○ Kid’s club where the club owner wouldn’t give names of bouncers and guy
who punched the P. (Bencivenga v. JJAMM, Inc.

Negligent Infliction of Emotional Distress

NIED Damages only for emotional distress.
3 Types of NIED Claims:

1. Fright/ Personal Hazard/ “Zone of Danger”

 When fear of harm to yourself causes emotional damage
 2 Possible Approaches:
○ i. Zone of Danger rule (majority) Robb v. Pennsylvania R.R. Co.
 Can recover if in zone of danger
 Some jurisdictions also require that the emotional damage
causes physical symptoms
○ ii. Physical Impact rule (minority)- must be some physical impact to open
doors to claim (even a bit of dirt hitting you)

 BE CAREFUL in distinguishing this from Assault. Big difference is intent v.

negligence

2. Bystander NIED

Bystander NIED Majority

(Thing v LaChusa)

1.) Need all the regular Negligence elements AND the emotional distress the bystander
incurred must be foreseeable.
 2.) Whether emotional distress is foreseeable requires 3 Elements:
1. closely related to the injury victim,
2. was present at the scene of the injury-producing event at the time it occurred
and was then aware that it was causing injury to the victim
3. as a result suffered serious emotional distress, a reaction beyond that which
would be anticipated in a disinterested witness and which is not an abnormal
response to the circumstances.

Bystander NIED claims in Wisconsin:

(Bowen)

This is a three step process:

1) P has to prove the traditional elements of negligence. In other words, it must be the case
that D breached his duty of care in a way that caused injury to P (severe emotional distress).

2) P must satisfy the three "Bowen factors":

(1) was the victim "seriously injured or killed"?
(2) was P the "spouse, parent, child, grandparent, grandchild, or sibling of the victim?"
(3) did P "observe an extraordinary event"?

3) Finally, do the 6 public policy factors preclude liability?

1. Remoteness of injury from breach
2. Proportionality between injury and D’s negligence
3. Extraordinary that harm results from the breach?
4. Does allowing recovery place too much of a burden on D?
5. Would allowing recovery open door to fraudulent claims?
6. Flood gates

3. Special Relationship
 Under this category of NIED, a duty to exercise reasonable care to prevent emotional
harm can exist when the plaintiff and defendant have a relationship such that the
 defendant can be said to have undertaken to take care for the plaintiff’s emotional
wellbeing.
o Foreseeability of emotional harm must be there
o Beul v. ASSE, German exchange girl

 Need special relationship & foreseeability of emotional harm

○ But you apply regular negligence elements

Trespass
Elements
1. Physical invasion
2. Of another’s land
*No injury element!!! (Jacque v. Steenberg Homes)

 The only intent requirement is to intend to go on that property -- don’t need to intend
to trespass (Burns Philip Food v. Cavalea)
 You can trespass by putting your property on other’s property (ball in backyard)

Damage Considerations for Trespass (Jacque v. Steenberg Homes)

 Maybe nominal damages if there is no injury to land.
 Maybe punitive if D. was told they didn’t have permission, but did it anyway

Defenses
 Necessity is incomplete defense bc still liable for damages caused can only use it
when in imminent danger
Vincent v. Lake Erie Transp. Co. – boat that damaged pier
 Consent
○ Limited by purpose & geographical boundaries & time limits
○ Both express and implied
Copeland v. Hubbard Broadcasting Co.

Nuisance
Unreasonable and substantial interference with use of real property
 Examine the D’s conduct and the circumstances of the neighborhood
(Penland v. Redwood Sanitary Sewer Dist.)
 Factors:
 1. Location of Nuisance
  2. Character of neighborhood
 3. Nature of thing complained of
 4. Frequency of intrusion
 5. Effect upon P.’s enjoyment of health, life, and property

 Relief is either: Injunction or damages

○ To see if an injunction is appropriate, examine the hardship of the injunction
for D. v. Benefit P. of the injunction.
 If the hardship to D. “greatly outweighs” the benefit to P, then an
injunction is not appropriate
 D. may make a “came to the nuisance” argument, but that can be trumped by
changing neighborhood and other factors.
Ultrahazardous Activities
● If you bring something “abnormally dangerous” onto your land and it escapes, then you’re
strictly liable.
○ Strict liability says breach is irrelevant -- No matter how much care they take, they
are liable.
○ P. can be contributorily negligent
○ Rylands v. Fletcher, is old case example with water reservoir flowing into mines

● Is it abnormally dangerous?
○ Factors: (Old Test)
a. Existence of a high degree of risk (of some harm to the person, land, or
chatel of others.)
b. Likelihood that the harm that results will be great
c. Inability to eliminate the risk by R-care
d. Extent to which the activity is common
e. Inappropriateness of the activity to the place it happens
f. Extent to which its value to the community is outweighed by danger

● Third Restatement condenses 6 factors into 2 elements: **use this on exam**

1. Creates a foreseeable and highly significant risk of physical harm even
when reasonable care is exercised.
2. Not common usage.

● Klein v. Pyrodyne goes through this way of analyzing what is abnormally dangerous.

● This case also mentions how strict liability can be imposed with public policy or statutes,
in addition to abnormally dangerous.
○ AKA 3 ways to impose strict liability: Mention all 3 on Exam
■ 1, Restatement Test
■ 2. Public Policy
■ 3. Statutes
● Why impose strict liability:
○ Cost-spreading
○ Make company who profits, bear the risk
○ Placing burden on them incentivizes them to minimize danger

● Defenses
○ No defenses.
Products Liability
Elements:
1. D sold a product
 Needs to be a product (not a service)
2. D is a commercial seller of such products
 Must be in the distribution chain (manufacturers, distributors, sellers, helped
place the product on the market)
(Regular people who are just selling things like on craigslist is not)
3. The product was defective when sold by the D,
 Types of Defects:
(name all 3 on exam and say why no claim under others you won’t need)
a. Manufacturing (something wrong with particular product)
b. Design
i. Tests:
1. Consumer Expectations Test
2. Risk-Utility Test (WI)
c. Warning/failure to warn
4. The product’s defect functioned as an actual and proximate cause of P’s injury

Types of Defects

Manufacturing defect: (Escola v. Coca Cola)

 if product diverges from the manufacturer’s own specifications for the product (i.e.
Coca-Cola bottle case)
 an item need not be a massed produced to count as a product with a manufacturing
defect
 the defect will be charged to the manufacturer so long as it emerges while the
product is in its control or possession

Design Defect: (Greenman v. Yuba Power Products-- shopsmith)

 there is a flaw in the plan or specifications for the product
 ○ A product that is safe if used in accordance with its warnings is not defective
or unreasonably dangerous (From Second Restatement)
 the flaw may be small or the essence of the product
 factors that play at least some role:
○ the significance of the risk posed by the design;
○ how ordinary consumers would expect the product to function; and
○ whether there is a feasible, safer, and affordable alternative design

 Test:
○ Consumer expectations test:
 a product is defective if it is dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community of its
characteristics.

o Risk-Utility Test (WI):

 a product is defective if its utility does not outweigh the danger
inherent in its introduction into the stream of commerce.
 Some jurisdictions also require plaintiffs to introduce evidence
of a hypothetical “reasonable alternative design” that would be
safer but functionally equivalently

Failure to Warn or Instruct:

 a product is defective for failure to warn when safety requires that the product be
sold with a warning, but the product was sold without one or without an adequate
warning & the missing or inadequate warning renders the product unreasonably
dangerous.
○ Includes mislabeled products

 If danger was unknowable, then they are not responsible for warning about it
○ If it was knowable, but manufacturer didn’t test, then they are liable
(Anderson v. Owens)

 No easy guideline, so consider:

○ content, comprehensibility, language, competence of expected user group
(Chow v. Reckitt)
  Heeding Presumption
○ If applicable: then it is assumed that P. would’ve followed an adequate
warning.
 Shift burden to D to prove that P wouldn’t have read the warning/ a
better warning wouldn’t have made a difference.
○ If not applicable, then P. must prove that they would’ve read an followed a
warning if it were better

 Learned Intermediary Doctrine - duty to warn only extends to the “learned

intermediary” when applicable Motus v. Pfizer - zoloft case

General Products Liability Notes:

 Consider Res Ipsa Loquitur for proving there was a defect.
○ Elements:
1. D had exclusive control
2. Accident would not have occurred without negligence
o Can apply when P was in control at the time of the injury, if plaintiff first
prove that the condition of product had not changed after it left the
defendant’s possession

 For injury element, property damage caused by a product defect is ordinarily

actionable
○ Except damages to the defective product itself

 D’s can also be liable for injuries that occur during demonstrations of loans- actual
sale or transfer is not necessary

 Defenses: same as Negligence:

○ Comparative Fault,
○ contributory negligence,
○ Express and Implied assumption of risk (for obvious risks)
○ product alteration
Indemnification & Liability Insurance
Interinsurance Exch. of the Automobile Club v. Flores
 Indemnification clauses: provisions that permit tortfeasor to sue another for costs
expended in litigation and liability for injuries stemming from the products supplied
○ (Duty to indemnify insurer pays the judgment)

 Duty to defend: insurer has to defend in the lawsuit.

○ This means paying for everything and has ability to accept settlements etc.
○ has to pay the judgment and for the defense when case is between tortfeasor
and insurance

 Broad insurance policies construed against the insurers

 Cost-Spreading
Torts Overview: Thinking guide

C: Conclusion
R: Reasoning
A: Application
C: Conclusion

Battery: the infliction of a harmful or offensive contact by an actor upon another with the intent
to cause such contact (requires the actual touching of the victim either direct or indirect by the
wrongdoer (“tortfeasor”)

Elements:
1. D acts…
2. Intending to …
3. D’s action causes contact that is harmful or offensive
4. Injury

-intent (single v. double)

-offense/ harmful contact
-battery considerations

Assault: apprehension: awareness of possibility of harm or offensive contact

Elements:
1. D Acts
2. Intending to cause in P the apprehension of an imminent harmful or offensive contact
with P; and
3. D’s act causes P reasonably to apprehend such a contact

-apprehension
-assault considerations
-threat v. assault: words alone are not an assault

Battery and Assault

-transferred intent
-affirmative defenses
-Consent (expressed/ implied) -> limitations (scope/ knowing & willful)
-Self-defense (imminent risk/ provocation/considerations)
 -defense of property (proportionality and deadly force)

IIED: (sometimes referred to as the tort of outrage); imposes liability on an actor, by means of
outrageous conduct, intentionally or recklessly causes severe emotional distress.

Elements:
1. Outrageous conduct
2. Intended to cause (or recklessly ignores…)
3. Emotional distress

-rarely succeeds
-liability: Liability arises under this tort when a defendant’s ‘conduct exceeds all bounds
usually tolerated by decent society and the conduct causes distress of a serious kind’

Negligence

Elements:
1. Duty (not determined by jury) (4 exceptions: (1) affirmative/ Special
relationship duty, (2) Premises liability, (3) pure economic loss (4) NIED
a. Reasonable persons standard
2. Breach
a. Reasonable care (foreseeability/ practicaility)
b. Person of ordinary prudence
c. Custom
d. Cost-benefit analysis
e. Considerations: Res Ipsa Loquitor, Negligence Per Se
3. Causation
a. Actual causation
i. But-For Test
ii. Substantial Factor
b. Proximate causation (PALSGRAF CASES) (Superseding causes)
i. Foreseeability
ii. Also consider superseding cause mitigation
c. Problem cases: Loss of Chance, Multiple Necessary Causes
(Mcdonald), Multiple Sufficient Causes (Boomer), Alternative
Cause (Summer) … Market Share liability
4. Injury
a. Damages (apportionment/ vicarious liability)
i. Compensatory (economic/ non-economic)
ii. Punitive
5. Defenses:
a. Contributory Negligence
b. Comparative Fault
 i. Pure comparative fault
ii. Modified comparative fault
c. Assumption of risk
i. Expressed v. implied

Foreseeability

 Duty: Is it foreseeable that this conduct if done carelessly could hurt someone?
 Breach: Did D fail to exercise reasonable care given the foreseeable risks?
 Proximate cause: Foreseeability of nature of injury. Was P's injury the result of one of
the risks that made D's conduct negligent? Scope of the risk test. Think of the
(unforeseeably) flammable rat poison.
 Palsgraf (majority): Foreseeability of victim. Was P within the class of persons
foreseeably put at risk by D's breach?
 Eggshell skull: Foreseeability of extent of damages: not relevant.
 Foreseeability of precise manner in which injury came about: not relevant.

Breach and Duty:

-Tender years, Professional Standard, Malpractice/ Medical disclosures (informed consent),
extraordinary care, strict liability

WI Approach for Negligence:

WI Approach (duty, breach, causation, injury, public policy considerations)
Duty: Duty of reasonable care not to harm owed to everyone (Andrew’s Dissent)
Causation:
 Actual Cause
o Substantial factor test
 Proximate Cause
o Just public policy factors

NIED: Negligent Infliction of Emotional distress

-Freight/personal hazard/ zone of danger (two tests)
-Bystander NIED (majority v. WI)
-Special relationship NIED

Trespass: a trespass is committed when a person enters the land of another without consent

Elements:
1. physical invasion
2. of another land (owner or possessed by another)
3. optional: without consent
 Defenses:
-Necessity (incomplete)
-consent (geography/ purpose)

Nuisance: Unreasonable ongoing interferences with plaintiff’s right to use and enjoy their
property

-factors
-injunction or damages – balance hardship and benefit

Ultrahazardous Activities: Any party that carries on with an ultrahazardous activity is strictly
liable for damages

-strict liability (reasons why)

-abnormally dangerous – Restatement
-hand formula

Products liability:
-Strict Liability if there was a defect
-types:
-manufacturing
-design
-consumer expectations
-risk-utility test
-failure to warn (special: prescription drug cases: learned intermediate doctrine,
heading presumption)
-learn intermediate doctrine
-heeding presumption
Defenses:
Assault & Battery: Consent, Self-Defense, Defense of Property
Negligence/ NIED: contributory negligence, Comparative Fault (Pure Comparative Fault,
Modified Comparative Fault (WI), Assumption of risk (Express consent-Tunkl & Implied consent)
Ultra-hazardous: strict liability
Nuisance: Came to the nuisance
Trespass: Necessity & Consent
Products liability: comparative fault, expressed consent, implied consent for obvious risks,
product misuse

ALWAYS THINK OF DAMAGE RECOVERY FOR ALL CLAIMS (com. and punitive)

WI Special applications:
-Battery intent: double intent
-Negligence: Duty: Duty to all
-Negligence: Causation: Actual Cause: Substantial Factor test
-Negligence: Causation: Proximate Cause: public policy factors
-Negligence: Malpractice: Reasonable Physician Test
-Negligence: Damages/ Defenses: Modified Comparative Fault
-Bystander NIED (minority rule: Thing)